Lavalley v. E.B. & A.C. Whiting Co.
Annotate this Case
Lavalley v. E.B. & A.C. Whiting Co. (94-657); 166 Vt. 205; 692 A.2d 367
[Filed 17-Jan-1997]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 94-657
Carrie Lavalley Supreme Court
On Appeal from
v. Chittenden Superior Court
E.B. & A.C. Whiting Company June Term, 1995
Linda Levitt, J.
Andrew D. Mikell, Burlington, for plaintiff-appellant
Christopher A. Micciche, Burlington, for defendant-appellee
Jeffrey L. Amestoy, Attorney General, Seth A. Steinzor, Assistant
Attorney General, and Melissa Jurgens, Law Clerk, Montpelier, for amicus
curiae State of Vermont
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J. Plaintiff Carrie Lavalley claims that defendant, E.B. and
A.C. Whiting Company discriminated against her on the basis of sex in
violation of the Vermont Fair Employment Practices Act, 21 V.S.A. §
495(a)(1). She appeals the decision of the superior court granting
defendant's motion for summary judgment. We affirm.
Plaintiff is a full-time employee at defendant's plant, where she
earns $359.20 per week. She works on a production line as a cutter/packer,
responsible for cutting long bundles of plastic fibers produced at the
plant. She is required to stand throughout the shift and to lift heavy
items.
In March 1991, plaintiff advised defendant that she was pregnant and
unable to perform her job requirements. She presented defendant with a
note from her physician stating that her condition rendered her unable to
stand for extended periods of time and made it difficult for her to perform
heavy lifting. Plaintiff asked defendant to accommodate her for the
duration of her
pregnancy either by having a co-worker assist her with heavy lifting or by
temporarily assigning her to light duty. Defendant denied plaintiff's
request to be accommodated on the job, and pursuant to the company's
disability policy, classified her disability as a long-term, nonwork-
related injury, and placed her on disability leave with half-pay of $160
per week. On July 5, 1991, plaintiff gave birth and, after her maternity
leave, returned to her former job at full pay.
Defendant's policy divides workers into those whose disability is
work-related and qualifies them for workers' compensation benefits, and
those whose disability is not work-related. The former are encouraged to
accept whatever accommodations are possible, and compatible, with their
ability to work. If alternative work is available, workers in this
category are placed in it. Whatever the accommodation, including the
placement in alternative work, the employees in this category receive full
pay as long as they work.
The second category, those with nonwork-related disabilities, is
further divided into two subcategories. The first subcategory is made up
of minor and short-term disabilities that are handled by shift supervisors
through accommodations that enable the employee to continue at full pay.
The second subcategory is made up of those with long-term disabilities that
render the worker unable to substantially perform his or her
responsibilities. According to defendant's union contract, these employees
are placed on disability leave at fifty percent of salary up to a maximum
of $160 per week. Plaintiff is in this subcategory.
Plaintiff brought an action alleging that defendant discriminated
against her on account of her pregnancy, violating Vermont's Fair
Employment Practices Act (FEPA). See 21 V.S.A. § 495(a)(1) ("It shall be
unlawful employment practice . . . [f]or any employer . . . to discriminate
against any individual because of . . . sex . . . ."). In her complaint,
she alleged that defendant violated FEPA "[b]y placing Plaintiff (who was
pregnant) into a class of persons (those injured away from the job) and
treating her differently from others who are disabled (those injured on the
job)."
Both parties moved for summary judgment, and the superior court
granted defendant's
motion. The court reasoned:
Here, the Plaintiff has not presented evidence proving
discriminatory motive. In fact, the practice of paying half salary
for long term non-work-related illness was motivated by a union
contract, not gender. The Plaintiff's reduction in salary was not
due to her gender or pregnancy, but the length of time and
physical limitations created by her condition.
Even if we assume that the Plaintiff established gender as
the motivating factor, we could not conclude that the Defendant
violated Vermont's Fair Employment Practices Act. Defendant's
decision to pay the plaintiff fifty percent of her salary during the
time she was unable to substantially perform her employment was
made and would have been absent any discriminatory motive.
Plaintiff appealed the court's decision to this Court.
Before we address the reasoning of the trial court, we must examine
the basic premise of plaintiff's claim -- that discrimination because of
pregnancy can be a violation of FEPA.(FN1) Defendant argues that pregnancy
discrimination cannot be found to be sex discrimination because: (1) in
interpreting FEPA, this Court follows the decisions of the federal courts
interpreting Title VII of the Civil Rights Act of 1964, the statute after
which FEPA is modeled; (2) the United States Supreme Court ruled in General
Electric Co. v. Gilbert, 429 U.S. 125, 135 (1976) that pregnancy
discrimination is not sex discrimination; (3) Congress overruled Gilbert by
enacting the Pregnancy Discrimination Act (PDA) as an amendment to Title
VII, 42 U.S.C. § 2000e(k); (4) the Vermont Legislature failed to amend FEPA
to include the language of the federal amendment and left Gilbert as the
proper interpretation of FEPA.
Defendant is correct that FEPA is patterned after Title VII of the
Civil Rights Act, Graff v. Eaton, 157 Vt. 321, 323, 598 A.2d 1383, 1384
(1991), and makes it unlawful for any employer to discriminate against any
individual because of his or her sex. 21 V.S.A. §
495(a)(1). We find, however, significant weaknesses in its argument.
We start with two preliminary points. First, this is not a case where
the Legislature has adopted a statute patterned on the statute of another
state or the United States after a determinative court decision
interpreting the model statute. Where the court decision precedes our
adoption, "the presumption is that the Legislature also adopted the
construction given the statute by the courts of the other [jurisdiction]."
Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 154, 569 A.2d 486, 487
(1989). The section of FEPA that sets out the regulatory standard was
adopted in 1963. 1963, No. 196, § 1. It was amended to include sex
discrimination in 1971, 1971, No. 9, § 1, and was again amended in 1976 to
its current form.(FN2) 1975, No. 198 (Adj. Sess.), § 1. All of the
legislative action preceded the date of the Gilbert decision. Thus, there
is no presumption that the Legislature intended to adopt the construction
of the statute in Gilbert. See State v. Wilcox, 160 Vt. 271, 273 n.1, 628 A.2d 924, 925 n.1 (1993).
Second, although Vermont has patterned FEPA on Title VII, we are not
bound by federal court interpretations of Title VII in construing FEPA.
"[W]e look to federal case law for guidance in construing" identical
provisions. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 165, 624 A.2d 1122,
1130 (1992). In other words, federal decisions represent persuasive
authority on the proper interpretation of FEPA. They are not, however, the
only sources of persuasive authority. Many states have enacted employment
discrimination laws patterned in whole or in part on Title VII. Decisions
from the courts of those states are also sources of persuasive authority.
We make these points to emphasize that we will not adopt an
interpretation of FEPA solely because the federal courts, including the
United States Supreme Court, have so interpreted Title VII. Nor do we
believe that the Vermont Legislature must react to every federal decision
interpreting Title VII or risk that its inaction will be interpreted as an
endorsement of the federal decision.
In this case, we are more persuaded by the decisions of the courts of
our sister states, which have overwhelmingly found in interpreting similar
or identical statutes that pregnancy discrimination can be sex
discrimination. See Colorado Civil Rights Comm'n v. Travelers Ins. Co.,
759 P.2d 1358, 1365 (Colo. 1988); Massachusetts Elec. Co. v. Massachusetts
Comm'n Against Discrimination, 375 N.E.2d 1192, 1199 (Mass. 1978);
Minnesota Mining & Mfg. Co. v. State, 289 N.W.2d 396, 398-99 (Minn. 1979);
Bankers Life & Casualty Co. v. Peterson, 866 P.2d 241, 244 (Mont. 1993);
Castellano v. Linden Bd. of Educ., 386 A.2d 396, 402 (N.J. Super. Ct. App.
Div. 1978), rev'd in part on other grounds, 400 A.2d 1182, 1183 (N.J.
1979); Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd.,
359 N.E.2d 393, 397 (N.Y. 1976); Anderson v. Upper Bucks County Area
Vocational Technical Sch., 373 A.2d 126, 130 (Pa. Commw. Ct. 1977); Frank's
Shoe Store v. West Virginia Human Rights Comm'n, 365 S.E.2d 251, 257 (W.
Va. 1986); Kimberly-Clark Corp. v. Labor & Indus. Review Comm'n, 291 N.W.2d 584, 586 (Wis. 1980). We agree with the reasoning of the Massachusetts
Supreme Judicial Court that "[p]regnancy is a condition unique to women,
and the ability to become pregnant is a primary characteristic of the
female sex. Thus any classification which relies on pregnancy as the
determinative criterion is a distinction based on sex." Massachusetts
Elec. Co., 375 N.E.2d at 1198.
We also believe that Gilbert is a weak precedent upon which to rely,
given the later congressional action. The Gilbert decision has been
roundly criticized. See, e.g., California Fed. Sav. & Loan Ass'n v.
Guerra, 479 U.S. 272, 284-85 (1987). In enacting the Pregnancy
Discrimination Act in 1978, Congress "unambiguously expressed its
disapproval of both the holding and the reasoning of the Court in the
Gilbert decision." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678 (1983). Congress found that the Court "erroneously
interpreted congressional intent and that amending legislation was
necessary to
reestablish the principles of Title VII law as they had been understood
prior to the Gilbert decision. Id. at 679. It is clear that Congress
viewed the Pregnancy Discrimination Act as a reenactment of the proper
meaning of Title VII, rather than the creation of expanded civil rights
protection for pregnant workers. By not following Gilbert, we are taking
proper guidance from the federal law.
Having determined that plaintiff's claim does not fail because
discrimination against pregnant women can never be sex discrimination, we
must determine whether FEPA was violated in this case. Plaintiff argues
this as a case of disparate treatment and claims that the trial court erred
in applying the burden-shifting rules that apply to such claims.
We have held that the standards and burdens of proof under FEPA are
identical to those existing under Title VII of the federal Civil Rights Act
of 1964. Hodgdon, 160 Vt. at 161, 624 A.2d at 1128; Graff, 157 Vt. at
323, 598 A.2d at 1384. In a series of decisions, we have applied the two
main United States Supreme Court precedents that define these standards and
burdens in a disparate-treatment case, McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
(superseded in part by Civil Rights Act of 1991, Pub. L. No. 102-166, §
107, 105 Stat. 1071, 1075 (1991) (codified at 42 U.S.C. § 2000e-2)). See
In re McCort, 162 Vt. 481, 491-93, 650 A.2d 504, 510-11 (1994); Hodgdon,
160 Vt. at 159-62, 624 A.2d at 1127-29; Graff, 157 Vt. at 324-27, 598 A.2d
at 1384-86; State v. Whitingham Sch. Bd., 138 Vt. 15, 18-22, 410 A.2d 996,
998-1000 (1979). Plaintiff argues that the trial court erred in applying
the standards and burdens of McDonnell Douglas and Price Waterhouse because
it failed to find that she had established a prima facie case under Price
Waterhouse and failed to apply the three-step test of McDonnell Douglas.
We conclude that the proper analysis of this case does not depend on the
burden allocations of those cases.(FN3)
It is important to emphasize some points about this case. As
specified in the complaint, this is a challenge to an employment policy of
defendant, with no claim that plaintiff has been treated unfairly except in
conformity with the policy. Although plaintiff's affidavit in opposition
to summary judgment stated that "there were jobs available for me if the
Defendant had wanted to employ me full time," this fact is fully consistent
with defendant's policy. There was no allegation below that the employer
treated nonpregnant employees with nonwork-related injuries more favorably
by providing them with job accommodation. Cf. Adams v. Nolan, 962 F.2d 791, 796 (8th Cir. 1992) (pregnancy discrimination found where employer
accommodated employee with nonwork-related disability for one month but
failed to accommodate pregnant employee who sought accommodation for one
month). On the contrary, she appears to have been accorded exactly the
same rights as were available to all other employees, whether male or
female. Nor was there any allegation that defendant departed from its
policy in a discriminatory manner, or that the employer implemented the
policy to intentionally discriminate against pregnant women. See Lambert
v. Genesee Hosp., 10 F.3d 46, 58 (2d Cir. 1993) (no finding of disparate
treatment where plaintiffs failed to offer any evidence that employer
"departed from [leave of absence] policy in a discriminatory manner, or
that the policy itself was designed to discriminate against pregnant
women"), cert. denied, 114 S. Ct. 1612 (1994).
Unlike the employment policy in Gilbert and virtually all of the
pregnancy discrimination cases, the policy does not specifically condition
any employment or benefit rule on pregnancy. Indeed, the policy is facially
neutral and affects pregnant women because their temporary disability, and
those of others both male and female, is not work related. See Adams, 962 F.2d at 794-95 (policy that determines availability of light-duty
assignments to those with "non-work related injury or illness" is not
discriminatory if applicable to all such persons without intent to
discriminate against pregnant workers); Ulloa v. American Express Travel
Related Servs. Co., 822 F. Supp. 1566, 1571 (S.D. Fla. 1993) (no disparate
treatment where pregnant employee who was terminated for taking leave of
absence exceeding twelve weeks failed to show she was treated less
favorably than nonpregnant employees who took leave of absence exceeding
twelve weeks); Atwood v. City of Des Moines, 485 N.W.2d 657, 660 (Iowa
1992) (police department's change in light-duty policy was not pregnancy
discrimination where new policies accorded pregnant police officer same
rights as were available prospectively to all other employees); see
generally Wimberly v. Labor & Indus. Relations Comm'n, 479 U.S. 511, 517
(1987) (state unemployment compensation rule that denies benefits to those
who leave jobs for nonwork-related reasons is facially neutral and does
not discriminate against pregnant worker).
Nevertheless, disability schemes that are facially neutral with
respect to pregnancy may still be subject to a disparate-impact claim.
See, e.g., Scherr v. Woodland Sch. Comm'n Consol. Dist. No. 50, 867 F.2d 974, 979 (7th Cir. 1988) (facially neutral practices that have disparate
impact on pregnant women can constitute pregnancy discrimination under
Title VII). Under a disparate-impact theory, the plaintiff is relieved of
the burden of having to show that the employer acted with discriminatory
intent; rather, the plaintiff need only show that the employment practice
has a discriminatory impact on a protected class and is not justified by
business necessity. See, e.g., EEOC v. Warshawsky & Co., 768 F. Supp. 647,
651 (N.D. Ill. 1991).
Plaintiff, however, failed to present either to the superior court or
to this Court a claim of disparate impact. A theory of disparate impact
should be pled specifically in the complaint. See Johnson v. Allyn & Bacon,
Inc., 731 F.2d 64, 73 (1st Cir. 1984) (disparate-impact theory not
presented to trial court cannot be raised for first time on appeal), cert.
denied, 469 U.S. 1018 (1984); 2 L. Larson, Employment Discrimination §
20.03, at 20-13 (2d ed. 1994) ("[A]ttempts to parlay a disparate treatment
case into a disparate impact case at a later stage of the litigation will
usually not succeed if the pleadings did not allege facts sufficient to
provide
the requisite fair notice to the defendant . . . ."). Even if plaintiff
has made a disparate-impact claim, we have no record of the impact of
defendant's policy, except on plaintiff. We do not know whether the policy
has a disproportionate impact on women employees generally.(FN4) Nor do we
know that the entire policy has a negative impact on pregnant women
generally.(FN5)
As a result of plaintiff's failure to make a disparate-impact claim,
plaintiff's claim is reduced to one that defendant's policy is sex
discrimination per se because it excludes pregnant women from doing some
job that they might be capable of performing. In other words, plaintiff's
claim is that FEPA prevents an employer from making disability-related
employment decisions on the basis of whether the disability is
work-related. We disagree that the policy violates FEPA on its face. Cf.
Wimberly, 479 U.S. at 517 (neutral unemployment compensation
disqualification policy, based on whether an employee leaving is work
related, does not violate pregnancy discrimination prohibition of Federal
Unemployment Tax Act). Plaintiff would have been treated no differently
had she suffered a nonwork disability unrelated to pregnancy. Defendant was
not required to grant to plaintiff benefits that were otherwise not
available to other employees with nonwork-related disabilities.
The policy distinction that plaintiff challenges is fundamentally
rooted in the workers' compensation laws, which provide that a worker who
"receives a personal injury by accident arising out of and in the course of
his employment" is entitled to compensation as provided by law. 21 V.S.A.
§ 618. If the worker "is unable to perform work for which the employee has
previous training or experience, the employee shall be entitled to
vocational rehabilitation services, including retraining and job placement,
as may be reasonably necessary to restore the
employee to suitable employment." Id. § 641. In cases of partial
temporary disability, the amount of compensation is based on the difference
between "the average weekly wage before the injury and the average weekly
wage which he or she is able to earn thereafter." Id. § 646.
In view of the separate statutory scheme for workers who are injured
in the course of their employment, we cannot conclude that the Legislature
intended FEPA to reach the gender consequences of that statutory scheme.
We do not accept the dissent's argument that there need be no consistency
between an employer's disability benefits policy and its disability
employment policy. As noted above, the workers' compensation laws provide
rights to both replacement income and retraining and job placement to
restore the worker to suitable employment. If we accept plaintiff's
argument here, we are necessarily holding that the governmental foundation
for the distinctions defendant's policy draws are also discriminatory. We
conclude that defendant did not discriminate against plaintiff on account
of sex in violation of 21 V.S.A. § 495(a)(1).
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Following initial briefing in this case, we requested that the
Attorney General submit a brief on this point. The Attorney General has
done so, arguing that discrimination on the basis of pregnancy is sex
discrimination prohibited by FEPA. The brief of the Attorney General has
been helpful, and, as set out in the text, we agree with the Attorney
General's position.
FN2. There have been further amendments to this section, but they are
unrelated to the dispute before us.
FN3. The dissent argues that plaintiff is entitled to reach the jury
on a claim that defendant's "explanation . . . is a pretext for
discrimination against pregnant women." Post, at 6. Even if we assume
that plaintiff made out a prima facie case of discrimination, she has never
made a claim of pretext, arguing instead that the policy itself is
discriminatory irrespective of defendant's reasons for implementing it. As
a result, the trial court concluded that "plaintiff has not presented
evidence proving discriminatory motive." The conclusion is clearly correct
on this record.
FN4. The only evidence before us is contained in an exhibit attached
to defendant's memorandum in support of summary judgment and sworn to by
defendant's controller. It shows the gender, period, and reason of all
persons who were placed in temporary disability status and received the
same benefits as plaintiff. In 1989, seventeen persons were placed in that
status and all were male. In 1990, thirteen persons were placed in that
status and five were female. The disability for one of the females was
pregnancy related. In 1991, twenty-one persons were placed in that status
and three were female. Again, the disability of one of the females was
pregnancy related. This information is of limited value, however, because
we do know the gender makeup of the workforce.
FN5. For example, those with work-related disabilities receive
workers' compensation benefits of unknown amounts. The amount would, of
course, affect the desirability of this alternative if no other job were
available.
We do not even know whether defendant's policy generally affects
pregnant workers in the way it affected plaintiff. If the nature of a
pregnant worker's job is such that it can be performed up to a short period
before giving birth, with reasonable workplace accommodations, the
availability of other jobs may be irrelevant. Thus, we do not accept the
dissent's argument that "defendant has employed a classification that
always excludes pregnant women from job opportunities." Post, at 3. We
can determine whether the impact of the defendant's policy is disparate,
under any theory, only if there is evidence of how it has affected pregnant
and nonpregnant employees.
Assuming that a disability scheme treats employees who suffer
nonwork-related injuries less favorably than employees who suffer
work-related injuries, a question arises as to the applicability of the
disparate-impact analysis to a claim that a facially neutral disability
scheme has a discriminatory effect on the basis of pregnancy. On this
point, the precedents under the PDA are split.
Some courts have held that, under the PDA, the proper comparison in
disparate-treatment or disparate-impact cases is between pregnant women and
nonpregnant persons. See EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 948 (10th Cir.) (comparison in pregnancy discrimination claim is
between pregnant women and nonpregnant workers), cert. denied, 506 U.S. 817
(1992); Maganuco v. Leyden Community High Sch. Dist. 212, 939 F.2d 440, 444
(7th Cir. 1991) (to establish claim that sick leave policy had disparate
impact on pregnant women, comparison is between women disabled due to
pregnancy and male coworkers or women who have not experienced
pregnancy-related disability). The Seventh Circuit Court in Ackerman
reasoned:
The [PDA] requires courts to inquire whether the employer treats
pregnancy or pregnancy-related conditions different than other
medical conditions. . . .
. . . The clear language of the PDA requires the court to
compare treatment between pregnant persons and "other persons
not so affected but similar in their ability or inability to work."
The comparison is, therefore, between pregnant and nonpregnant
workers, not between men and women.
956 F.2d at 948 (quoting 42 U.S.C. § 2000e(k)).
Others hold that, because the PDA was a definitional amendment, it did
not add a new cause of action for pregnancy discrimination. Warshawsky,
768 F. Supp. at 653. The Warshawsky court concluded, therefore, that "the
statistical analysis under a disparate impact theory is the traditional
`sex discrimination' analysis." Id. at 654 (footnote omitted). In other
words, the comparison is between female employees and male employees. See
id. at 655 (finding disparate impact where first-year female employees were
more likely to be fired than first-year male employees).
Because of the failure of plaintiff to produce evidence of the impact
of defendant's policy, we do not have to determine how we will resolve this
question under FEPA.
------------------------------------------------------------------------------
Concurring and Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 94-657
Carrie Lavalley Supreme Court
On Appeal from
v. Chittenden Superior Court
E.B. & A.C. Whiting Company June Term, 1995
Linda Levitt, J.
Andrew D. Mikell, Burlington, for plaintiff-appellant
Christopher A. Micciche, Burlington, for defendant-appellee
Jeffrey L. Amestoy, Attorney General, Seth A. Steinzor, Assistant
Attorney General, and Melissa Jurgens, Law Clerk, Montpelier, for amicus
curiae State of Vermont
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., concurring and dissenting. I agree with the majority
that FEPA prohibits discrimination on the basis of pregnancy. I disagree,
however, with the majority's conclusion that plaintiff's
disparate-treatment claim must fail because defendant's policy is "facially
neutral." Ante, at 7. The majority disregards both the established
standards that govern employment discrimination claims and the compelling
policies that underpin the prohibition on pregnancy discrimination. In my
view, plaintiff has made a sufficient showing, under the settled precedent
of this Court and the United States Supreme Court, to survive summary
judgment and go to trial on her claim of pregnancy discrimination.
I.
The majority resolves this case simply by concluding that the
employer's practice of treating employees injured on the job better than
those injured off the job is appropriate and nondiscriminatory. The
majority reasons that, since defendant's accommodation scheme
employs the same classification as the workers' compensation program,
defendant's program cannot be considered discriminatory. I disagree. The
workers' compensation program predates FEPA and was designed for a
different purpose. The goal of workers' compensation is to provide for
speedy and relatively uncomplicated resolution of employees' claims against
employers for injuries received on the job. See Morrisseau v. Legac, 123
Vt. 70, 76, 181 A.2d 53, 57 (1962); DeGray v. Miller Bros Constr. Co., 106
Vt. 259, 274, 173 A. 556, 562 (1934). In exchange for assuring employees a
remedy "both expeditious and independent of proof of fault," the liability
of employers is limited and definitely established. Morrisseau, 123 Vt. at
76, 181 A.2d at 57. As the New York Court of Appeals has noted, laws
prohibiting discrimination in employment and laws mandating benefits for
disabled workers are "skew lines," passing each other without intersection,
and establishing different, but not conflicting, minimum requirements for
employers. Brooklyn Union Gas Co. v. New York Human Rights Appeal Bd., 359 N.E.2d 393, 396 (N.Y. 1976) (objective of human rights law was quite
different from, though not necessarily at odds with, older disability
benefits law).
Defendant cannot, of course, be subject to a discrimination claim for
extending workers' compensation benefits only to those disabled on the job
-- that is, for doing what is required by law. But rather than paying
temporarily disabled workers the required workers' compensation benefits,
which are less than full pay, see, e.g., 21 V.S.A. §§ 642, 646, defendant
has chosen to provide those employees with light-duty work at full pay.(FN1)
Plaintiff's claim, therefore, is that she is similarly situated to the
employees that defendant has voluntarily decided to accommodate on the job.
The majority glosses over this argument, noting merely that plaintiff
did not allege "that the employer treated nonpregnant employees with
nonwork-related injuries more favorably" than plaintiff. Ante, at 7. In
doing so, the majority simply accepts the employer's classification at face
value. But plaintiff's claim challenges the classification drawn by the
employer. She points to other disabled employees who have been given the
benefit of light-duty jobs at full pay, and alleges that she is similarly
situated to those employees. The majority disregards this argument, in
effect assuming that the employer is entitled to decide which employees are
similarly situated to plaintiff. I see no reason to accept defendant's
argument, that plaintiff should be compared to other employees denied
accommodation, over plaintiff's claim that she is similarly situated in her
ability to work to employees who have received light duty.
Consider an analogy. Both state and federal governments have special
programs that classify people with disabilities, providing benefits to
people who fit in certain categories. See, e.g., 20 C.F.R. § 404.1525(a)
(1996); id. pt. 404, subpt. P, app. 1 (listing of impairments that qualify
for federal disability benefits). An employer could not, however, choose
to accommodate disabled employees based on those same classifications. The
employer's legal obligation to provide reasonable accommodation for a
disabled employee is governed by FEPA, and turns on whether the employee is
a "qualified handicapped individual" for the purposes of FEPA. 21 V.S.A. §
495(a)(1); Potvin v. Champlain Cable Corp., 7 Vt. L.W. 297, 300 (1996).
Similarly, defendant may not escape plaintiff's claim of pregnancy
discrimination simply by pointing to the workers' compensation program.
The classifications drawn in government entitlement programs are not
necessarily appropriate for an employer to use to decide which employees
get to work under FEPA.
This is especially true where, as here, defendant has employed a
classification that always excludes pregnant women from job opportunities.
Employers have a long history of firing pregnant women or imposing
mandatory (unpaid) leave, without reference to an individual woman's
ability to perform her job. These arbitrary, discriminatory policies have
helped to keep
women from achieving parity with men in the workplace. See H.R. Rep. No.
948, 95th Cong., 2d Sess. 6 (1978), reprinted in 1978 U.S.C.C.A.N. 4749,
4754. The federal Pregnancy Discrimination Act (PDA) was specifically
intended to prohibit employers from making arbitrary decisions about
pregnant women's capacity for employment. Id. According to the House
Report on the PDA, employer requirements and benefits, including the
practice of "transferring workers to lighter assignments," must be
"administered equally for all workers in terms of their actual ability to
perform work." Id. at 5, reprinted in 1978 U.S.C.C.A.N. at 4753. This
standard is reflected in the language of the PDA, which states that "women
affected by pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes . . . as other persons
not so affected but similar in their ability or inability to work." 42
U.S.C. 2000e(k).
The PDA makes explicit the standard that, logically, must be used to
evaluate a claim under the mandate the Court adopts today -- that pregnant
women must receive equal treatment on the job. A pregnant woman must be
treated in the workplace according to her individual ability to work.
There is nothing unique about the federal statutory language; in light of
the history of arbitrary and unreasonable restrictions imposed on pregnant
workers, it is the only reasonable way to interpret the mandate that
pregnant women receive equal treatment on the job. Plaintiff's claim is
based on this standard. She complains that her request for light duty was
not evaluated in light of her individual ability to work. Instead, she was
sent home from work and forced to take a low-paying disability leave, when
other similarly disabled employees were given light-duty work at full pay.
In my opinion, she has made a colorable claim of discrimination that should
survive defendant's motion for summary judgment.
II.
The majority can easily disregard the validity of plaintiff's claim
because it decides this case without reference to the standards and burdens
of proof that we have adopted to decide FEPA claims. Instead, the majority
holds that defendant's policy is not a "per se" violation of
FEPA. Ante, at 10. This reasoning unjustifiably equates a
disparate-treatment claim, such as that alleged by plaintiff, with a claim
that an employer's policy or practice on its face "evinces discrimination
on the basis of sex." International Union, UAW v. Johnson Controls, 499 U.S. 187, 199 (1991). Obviously, some sex discrimination cases, including
some that involve pregnancy discrimination, are challenges to employer
policies that explicitly discriminate on the basis of sex. See, e.g., id.
at 198 (only female employees required to prove that they are not capable
of reproducing in order to work in jobs involving lead exposure). In such
a case the only issue in dispute is whether sex is a bona fide occupational
qualification (BFOQ) for the given job. See 42 U.S.C. § 2000e-2(e)(1); 21
V.S.A. § 495(a). A disparate-treatment claim does not fail, however,
merely because a plaintiff cannot point to an employer policy that
explicitly treats women, or pregnant women, different from other employees.
Even where an employer claims to be acting in a unbiased manner, a
plaintiff may attempt to "persuad[e] the trier of fact that the defendant
intentionally discriminated against" her. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981).
Plaintiff's case should be evaluated, like any claim of disparate
treatment, in light of the shifting-burden analysis first established by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973), and later applied to FEPA claims by this Court. See Hodgdon v.
Mount Mansfield Co., 160 Vt. 150, 159, 624 A.2d 1122, 1127 (1992); State v.
Whitingham Sch. Bd., 138 Vt. 15, 19, 410 A.2d 996, 998-99 (1979). Under
that scheme, plaintiff has the initial burden of establishing a prima facie
case of disparate treatment. Hodgdon, 160 Vt. at 159, 624 A.2d at 1127.
"This burden is a relatively light one," see id., and plaintiff has met it.
She has established that: 1) as a pregnant woman, she is a member of a
protected class; 2) she asked her employer to accommodate her by providing
alternate, light-duty work when she was unable to perform her usual job
due to a pregnancy-related disability; 3) her employer refused to
accommodate her and instead required her to take disability leave at
reduced pay, and 4) her employer has provided such accommodation to workers
who are not
members of the protected class, that is, men. In my opinion, these facts
are sufficient to raise an inference of discrimination; if otherwise
unexplained, a court could presume that the employer's conduct was based on
plaintiff's sex or pregnancy. See Burdine, 450 U.S. at 254 (prima facie
case creates presumption that employer unlawfully discriminated against
employee); Hodgdon, 160 Vt. at 159, 624 A.2d at 1127 (plaintiff established
prima facie case by showing that she was fired because she did not wear
dentures while two male employees were not required to wear dentures).
"[O]nce plaintiff has established a prima facie case, the burden
shifts to the employer `to articulate some legitimate, nondiscriminatory
reason'" for its conduct. Hodgdon, 160 Vt. at 159, 624 A.2d at 1127
(quoting McDonnell Douglas, 411 U.S. at 802). Although the ultimate burden
of persuasion remains at all times with plaintiff, Burdine, 450 U.S. at
253, the employer must rebut the presumption of discrimination with a
nondiscriminatory explanation of the challenged conduct. This forces the
parties to properly frame the factual issue before the court: the employer
must provide a legitimate reason for its conduct and the employee must
persuade the court that the proffered explanation is a pretext for
discrimination. Id. at 254-56. In effect, this is no different from
plaintiff's ultimate burden of persuasion; to persuade the court that the
employer intentionally discriminated against her, plaintiff must show that
the nondiscriminatory reason given by the employer was not the true reason
for the employment decision. Id. at 256.
Here, the employer has provided an explanation for its refusal to
accommodate plaintiff. Defendant maintains that the decision to accommodate
a disabled employee turns on whether the employee was injured on or off the
job. Employees injured at work are accommodated, while employees who are
injured off the job are required to take disability leave. Thus, according
to defendant, its decision not to accommodate plaintiff was based not on
her sex or pregnancy but on the fact that her disability was not
work-related.
To succeed in her claim, then, plaintiff must persuade the
trier-of-fact that the
explanation given by defendant is a pretext for discrimination against
pregnant women. She can do so "either directly by persuading the court
that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation is unworthy
of credence." Id. Although additional evidence could strengthen
plaintiff's case, she is not obligated at this point to come forward with
new evidence. She can rest on the evidence introduced to support her prima
facie case. See id. at 255 n.10 (although legally-mandated presumption of
discrimination drops from case when employer provides nondiscriminatory
explanation for conduct, evidence provided to establish prima facie case
and inferences properly drawn therefrom may be considered by trier of fact
on issue of whether defendant's explanation is pretextual). In essence,
plaintiff poses a credibility contest between her claim of pregnancy
discrimination and defendant's claim that its conduct was motivated by a
nondiscriminatory policy. In my opinion, that is an issue of fact that
should be resolved at trial.
The majority apparently believes that a facially neutral policy can be
challenged only on the basis of its discriminatory impact. I cannot accept
this conclusion. It is not inconceivable that an employer would design a
facially neutral classification such as this one with an intent to exclude
pregnant women from benefits provided to other employees. With a growing
female workforce, employers may be increasingly reluctant to pay for costs
associated with pregnancy. Regardless of how a classification appears on
its face, however, an employer may not adopt it with an intent to
discriminate against a protected class. I believe that plaintiff is
entitled to go to trial on her disparate-treatment claim, and attempt to
persuade the court that defendant's facially neutral policy is a pretext
for discrimination against pregnant women. I therefore dissent.
_______________________________________
Associate Justice
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Footnotes
FN1. Although the majority refers to statutory provisions that
mandate rehabilitation services for injured workers, see 21 V.S.A. § 641,
defendant's policy of providing light-duty work for some employees and not
for others is not based on the workers' compensation laws. Plaintiff
challenges the classification that defendant uses to award benefits beyond
those required by law. A decision in plaintiff's favor therefore would not
reach the "gender consequences," ante, at 11, of the workers' compensation
laws.
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